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07-3677-cv (L), 07-3900-cv (XAP)
Alexander v. Cahill
1
2
3 UNITED STATES COURT OF APPEALS
4
5 FOR THE SECOND CIRCUIT
6
7
8
9 August Term, 2008
10
11 (Argued: January 22, 2009 Decided: March 12, 2010 )
12
13 Docket Nos. 07-3677-cv (L), 07-3900-cv (XAP)
14
15
16
17 JAMES L. ALEXANDER, ALEXANDER & CATALANO LLC, and PUBLIC CITIZEN, INC.,
18
19 Plaintiffs-Appellees-Cross-Appellants,
20
21 â v. â
22
23 THOMAS J. CAHILL, in his official capacity as Chief Counsel for the Departmental
24 Disciplinary Committee for the Appellate Division of the New York Court of Appeals, First
25 Department, DIANA MAXFIELD KEARSE, in her official capacity as Chief Counsel for the
26 Grievance Committee for the Second and Eleventh Judicial Districts, GARY L. CASELLA, in
27 his official capacity as Chief Counsel for the Grievance Committee for the Ninth Judicial
28 District, RITA E. ADLER, in her official capacity as Chief Counsel for the Grievance
29 Committee for the Tenth Judicial District, MARK S. OCHS, in his official capacity as Chief
30 Attorney for the Committee on Professional Standards for the Appellate Division of the New
31 York Court of Appeals, Third Department, ANTHONY J. GIGLIOTTI, in his official capacity as
32 acting Chief Counsel for the Grievance Committee for the Fifth Judicial District, DANIEL A.
33 DRAKE, in his official capacity as acting Chief Counsel for the Grievance Committee for the
34 Seventh Judicial District and VINCENT L. SCARSELLA, in his official capacity as acting Chief
35 Counsel for the Grievance Committee for the Eight Judicial District,
36
37 Defendants-Appellants-Cross-Appellees.
38
39
40
41 Before: WALKER and CALABRESI, Circuit Judges. 1
1
The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August
8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter. See 28
U.S.C. 46(d); Local Rule 0.14(d); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
1 Defendants below, representing New Yorkâs Appellate Division, appeal from the
2 decision of the United States District Court for the Northern District of New York (Scullin, J.),
3 granting summary judgment to Plaintiffs and invalidating content-based restrictions on attorney
4 advertising in New York State. Plaintiffs below cross-appeal from so much of the District
5 Courtâs opinion as granted summary judgment to Defendants, upholding a thirty-day moratorium
6 on targeted solicitation following a specific incident. The District Courtâs opinion is
7 AFFIRMED in part and REVERSED in part.
8
9
10 GREGORY A. BECK (Brian Wolfman, on the brief),
11 Public Citizen Litigation Group, Washington, D.C., for
12 Plaintiffs-Appellees-Cross-Appellants.
13
14 OWEN DEMUTH, Assistant Solicitor General (Barbara D.
15 Underwood, Solicitor General, Andrew D. Bing, Deputy
16 Solicitor General, and Peter H. Schiff, Senior Counsel, of
17 counsel), for Andrew M. Cuomo, Attorney General of the
18 State of New York, Albany, N.Y., for Defendants-
19 Appellants-Cross-Appellees.
20
21 David G. Keyko and Ryan G. Kriger, Pillsbury Winthrop
22 Shaw Pittman LLP, New York, N.Y., for amicus curiae
23 Bar of the City of New York in support of Plaintiffs-
24 Appellees-Cross-Appellants.
25
26 Kathryn Grant Madigan, New York State Bar Association,
27 Albany, N.Y., and Bernice K. Leber (Jennifer L. Bougher
28 and Ali M. Arain, on the brief), Arent Fox LLP, New York,
29 N.Y., for amicus curiae New York State Bar Association in
30 support of Defendants-Appellants-Cross-Appellees.
31
32
33 CALABRESI, Circuit Judge:
34 New Yorkâs Appellate Division adopted new rules prohibiting certain types of attorney
35 advertising and solicitation, which were to take effect February 1, 2007. The new rules barred,
36 inter alia, testimonials from clients relating to pending matters, portrayals of judges or fictitious
37 law firms, attention-getting techniques unrelated to attorney competence, and trade names or
38 nicknames that imply an ability to get results. The amendments also established a thirty-day
39 moratorium for targeted solicitation following a specific incident, including targeted ads on
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1 television or in other media. Plaintiffs, a New York attorney, along with his law firm and a not-
2 for-profit public interest organization, challenged these provisions as violating the First
3 Amendment. The District Court agreed in partâit declared most of the content-based rules
4 unconstitutional, while upholding the thirty-day moratorium. Both Plaintiffs and Defendants
5 timely appealed from portions of the District Courtâs decision adverse to them. For the reasons
6 that follow, we conclude that the District Court properly granted summary judgment to Plaintiffs
7 with respect to the content-based advertising restrictions, with the exception of the prohibition on
8 portrayals of fictitious law firms. We likewise conclude that the District Court properly granted
9 summary judgment to Defendants with respect to the thirty-day moratorium. Accordingly, we
10 affirm the District Courtâs opinion in large part, and reverse in part.
11 BACKGROUND
12 A. The Parties
13 The Plaintiffs-Appellees-Cross-Appellants (âPlaintiffsâ) are an individual (James
14 Alexander), a law firm (Alexander & Catalano), and a not-for-profit consumer rights
15 organization (Public Citizen). Alexander is the managing partner of Alexander & Catalano, a
16 personal injury law firm with offices in Syracuse and Rochester. Alexander & Catalano use
17 various broadcast and print media to advertise. Prior to the adoption of New Yorkâs new
18 attorney advertising rules, the firmâs commercials often contained jingles and special effects,
19 including wisps of smoke and blue electrical currents surrounding the firmâs name. Firm
20 advertisements also featured dramatizations, comical scenes, and special effectsâfor instance,
21 depicting Alexander and his partner as giants towering above local buildings, running to a
22 clientâs house so quickly they appear as blurs, and providing legal assistance to space aliens.
23 Another advertisement depicted a judge in the courtroom and stated that the judge is there âto
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1 make sure [the trial] is fair.â The firmâs ads also frequently included the firmâs slogan, âheavy
2 hitters,â and phrases like âthink bigâ and âweâll give you a big helping hand.â To date, no
3 disciplinary actions have been brought against the firm or its lawyers based on firm advertising.
4 The new rules, however, caused the firm to halt its advertisements for fear of such action.
5 Plaintiff Public Citizen is a D.C. not-for-profit corporation, with approximately 100,000
6 members nationwide, including roughly 10,000 in New York. Public Citizen Litigation Group is
7 a division of Public Citizen that conducts, inter alia, pro bono constitutional litigation in state
8 and federal courts on behalf of its clients. These organizations maintain a website and various
9 blogs, and participate in distributing educational materials on various legal issues to the public.
10 Defendants-Appellants-Cross-Appellees (âDefendantsâ) are the chief counsels or acting
11 chief counsels of the disciplinary committees whose jurisdiction lies within each of the four
12 Judicial Departments of the New York Supreme Court, Appellate Division. The Appellate
13 Division is authorized to discipline attorneys for professional misconduct. See N.Y. Judiciary
14 Law § 90(2) (McKinney 2009). Pursuant to this authority, the four presiding justices of each of
15 New Yorkâs four departments are responsible for adopting disciplinary rules, which set the
16 parameters for professional conduct and provide for the discipline of attorneys violating the
17 rules. The departments have, in turn, appointed the disciplinary committees of which Defendants
18 are a part. These committees undertake investigations into complaints of attorney misbehavior.
19 Following an investigation, Defendants are empowered to take a number of actions with respect
20 to a complaint, including issuing a letter of caution or recommending that formal disciplinary
21 proceedings be started. When formal disciplinary proceedings are deemed warranted,
22 Defendants begin such proceedings in the Appellate Division. Accordingly, Defendants are
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1 responsible for enforcing the New York Code of Professional Responsibility and the attorney
2 disciplinary rules promulgated thereunder.
3
4 B. The Appellate Divisionâs Adoption of the New Rules
5 In June 2006, the presiding justices of the four departments of the Appellate Division
6 approved for comment draft amendments to the then-existing rules. A press release explained
7 that the new rules were designed to protect consumers âagainst inappropriate solicitations or
8 potentially misleading ads, as well as overly aggressive marketing,â and to âbenefit the bar by
9 ensuring that the image of the legal profession is maintained at the highest possible level.â
10 Following a comment period, the presiding justices issued final rules. These rules were set to
11 take effect on February 1, 2007.
12 We consider below a subset of these final rules, which we subdivide into two categories.
13 The first group of amendments imposes a series of content-based restrictions:
14 N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c):
15 (c) An advertisement shall not:
16 (1) include an endorsement of, or testimonial about, a lawyer or law firm
17 from a client with respect to a matter that is still pending . . .
18 (3) include the portrayal of a judge, the portrayal of a fictitious law firm,
19 the use of a fictitious name to refer to lawyers not associated together in a
20 law firm, or otherwise imply that lawyers are associated in a law firm if
21 that is not the case . . .
22 (5) rely on techniques to obtain attention that demonstrate a clear and
23 intentional lack of relevance to the selection of counsel, including the
24 portrayal of lawyers exhibiting characteristics clearly unrelated to legal
25 competence . . .
26 (7) utilize a nickname, moniker, motto or trade name that implies an ability to
27 obtain results in a matter. 2
2
At the time this action was argued, these provisions appeared at N.Y. Comp. Codes R. & Regs., tit. 22, §
1200.6(c). They appear at their present location without change.
An attorney âadvertisementâ is defined by N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.0(a) as âany public or
private communication made by or on behalf of a lawyer or law firm about that lawyer or law firmâs services, the
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1
2 The second group of amendments imposes a thirty-day moratorium on certain
3 communications following a personal injury or wrongful death event:
4
5 N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.52: Solicitation and
6 Recommendation of Professional Employment
7 (b) For purposes of this Rule, âsolicitationâ means any advertisement initiated
8 by or on behalf of a lawyer or law firm that is directed to, or targeted at, a
9 specific recipient or group of recipients, or their family members or legal
10 representatives, the primary purpose of which is the retention of the lawyer or
11 law firm, and a significant motive for which is pecuniary gain. It does not
12 include a proposal or other writing prepared and delivered in response to a
13 specific request of a prospective client.
14 (e) No solicitation relating to a specific incident involving potential claims for
15 personal injury or wrongful death shall be disseminated before the 30th day
16 after the date of the incident, unless a filing must be made within 30 days of
17 the incident as a legal prerequisite to the particular claim, in which case no
18 unsolicited communication shall be made before the 15th day after the date of
19 the incident.
20
21
22 N.Y. Comp. Codes R. & Regs., tit. 22 § 1200.36: Communication after Incidents
23 Involving Personal Injury or Wrongful Death
24
25 (a) In the event of a specific incident involving potential claims for personal
26 injury or wrongful death, no unsolicited communication shall be made to an
27 individual injured in the incident or to a family member or legal
28 representative of such an individual, by a lawyer or law firm, or by any
29 associate, agent, employee or other representative of a lawyer or law firm
30 representing actual or potential defendants or entities that may defend and/or
31 indemnify said defendants, before the 30th day after the date of the incident,
32 unless a filing must be made within 30 days of the incident as a legal
33 prerequisite to the particular claim, in which case no unsolicited
34 communication shall be made before the 15th day after the date of the
35 incident.
36
37 (b) An unsolicited communication by a lawyer or law firm, seeking to
38 represent an injured individual or the legal representative thereof under the
39 circumstance described in paragraph (a) shall comply with [§ 1200.52(e)]. 3
primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to
existing clients or other lawyers.â
3 At the time this action was argued, these provisions appeared at N.Y. Comp. Codes R. & Regs., tit. 22, §§ 1200.8
and 1200.41, respectively. Former § 1200.8 appears unchanged at § 1200.52. Former § 1200.41, which now
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1
2 C. The Present Action and District Court Decision
3 Plaintiffs filed their complaint on February 1, 2007, the date on which the new rules were
4 to take effect. They sought declaratory and injunctive relief from several of the new rules,
5 including all those set forth above. Plaintiffs contended that these rules infringed their First
6 Amendment rights because the rules prohibited âtruthful, non-misleading communications that
7 the state has no legitimate interest in regulating.â Plaintiffs moved for a preliminary injunction
8 against enforcement of the rules, and Defendants moved to dismiss the complaint for, inter alia,
9 lack of standing. The District Court (Scullin, J.) reserved decision on Plaintiffsâ motion and
10 denied Defendantsâ cross-motion. Alexander v. Cahill, No. 5:07-cv-117, 2007 U.S. Dist. LEXIS
11 29823 (N.D.N.Y. Apr. 23, 2007). Thereafter, the parties stipulated to a set of facts and exhibits
12 that became the basis for competing motions for summary judgment.
13 On July 23, 2007, the District Court filed its Memorandum-Decision and Order granting
14 partial summary judgment to Plaintiffs and partial summary judgment to Defendants. Alexander
15 v. Cahill, 634 F.Supp.2d 239 (N.D.N.Y. 2007). Principally, the District Court found
16 unconstitutional the disputed provisions of § 1200.50(c) set forth above, while concluding that
17 the thirty-day moratorium provisions survived constitutional scrutiny. 4
18 Throughout its opinion, the District Court applied the test for commercial speech set forth
19 in Central Hudson, which considers whether (1) the speech is protected by the First Amendment;
20 (2) there is a substantial state interest to be achieved by the restriction; (3) the restriction
21 materially advances the state interest; and (4) the restriction is narrowly drawn. See Central
appears at § 1200.36, has changed by shifting between subsections (a) and (b) the class of lawyers and law firms it
addresses. The parties have not briefed the relevance, if any, of this change. We accordingly read the change to be
immaterial to this appeal.
4 The District Court made several additional rulings that are not at issue in these appeals. Most importantly, the
District Court accepted a narrowing construction of the amendments as inapplicable to non-commercial attorney
communications. On this basis, the District Court granted Defendantsâ summary judgment motion as to Plaintiffsâ
claims regarding application of the rules to non-commercial speech. Alexander, 634 F.Supp.2d at 255-56.
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1 Hudson Gas & Elec. Corp. v. Pub. Serv. Commân of N.Y., 447 U.S. 557, 564-66 (1980). The
2 District Court rejected Defendantsâ claim that âthe State of New York could ban attorney
3 advertising that was âirrelevant, unverifiable, [and] non-informationalâ without reference to the
4 Central Hudson test.â Alexander, 634 F.Supp.2d at 246 n.4. It concluded: âDefendants have
5 provided no legal support for this proposition, and the Court finds none. Although these
6 characteristics may be evidence that an advertisement is misleading, they do not by themselves
7 constitute a justification for banning commercial speech in the form of attorney advertising.â Id.
8 Turning to the amendments that restricted potentially misleading advertisements,
9 including the disputed provisions of § 1200.50(c), the District Court found that Defendantsâ
10 stated interest in protecting consumers from misleading attorney advertisements was a
11 substantial one. Id. at 247-48. Under Central Hudsonâs penultimate prong, which requires that
12 the regulation materially advance the stateâs interest, however, the District Court concluded that
13 the record was ânotably lacking.â Id. at 248. The District Court gave considerable weight to
14 Defendantsâ reliance on the New York State Bar Associationâs Task Force Report on Lawyer
15 Advertising, but concluded that the Report provided sufficient support only for two amendments:
16 the prohibition on the portrayal of judges in attorney advertisements, and the prohibition on the
17 use of trade names that imply an ability to get results. Id. at 248-49. As to the remaining
18 disputed portions of § 1200.50(c), the District Court emphasized that the Task Force Report had
19 recommended disclosure and invigorated enforcement of existing rules, rather than any new
20 content-based restrictions. Id. at 249. Finally, the District Court found that the two amendments
21 that materially advanced New Yorkâs interest in preventing misleading advertising did not do so
22 in a sufficiently narrowly tailored fashion. The District Court criticized Defendants for failing
23 âto produce any evidence that measures short of categorical bans would not have sufficed to
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1 remedy the perceived risks of such advertising being misleading.â Id. at 250. The District Court
2 therefore concluded that all of the disputed portions of § 1200.50(c) failed the Central Hudson
3 test.
4 With regard to the thirty-day moratorium on contacting victims, the District Court
5 reached the opposite conclusion. The District Court recognized that New Yorkâs moratorium is
6 broader than the Florida moratorium sustained by the Supreme Court in Florida Bar v. Went For
7 It, Inc., 515 U.S. 618 (1995). Floridaâs moratorium was limited to direct-mail solicitation, while
8 New Yorkâs provisions âextend by their plain language to television, radio, newspaper, and
9 website solicitations that are directed to or targeted at a specific recipient or group of recipients.â
10 Alexander, 634 F.Supp.2d at 253. Nonetheless, the District Court concluded that New Yorkâs
11 moratorium materially advanced state interests in protecting the privacy of citizens and guarding
12 against the indignity of being solicited for legal services immediately following a personal injury
13 or a wrongful death event, and did so in a reasonably proportionate manner. Id. at 253-55. The
14 District Court relied on âan emerging consensus among authorities, state and federal, regarding
15 the desirability of some form of moratorium,â citing the Task Force Reportâs review of direct-
16 mail moratoria in Florida and eight other states, the federal airline disaster moratorium (which
17 prohibits not only direct-mail solicitation, but âunsolicited communicationsâ generally for a
18 forty-five day period, 49 U.S.C. § 1136), and the Supreme Courtâs opinion in Florida Bar.
19 Alexander, 634 F.Supp.2d at 254. The District Court also noted âthe existence of âample
20 alternative channelsâ for the public to receive information concerning legal services during the
21 moratorium periodânamely, general advertisements in any media, provided they do not
22 reference a specific tragedy.â Id. (quoting Florida Bar, 515 U.S. at 633-34).
23 DISCUSSION
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1 This case calls on us once again to assess the scope of First Amendment protection
2 accorded to commercial speech, and the measure of evidence a state must present in regulating
3 such speech. Because this action was resolved on summary judgment, we review the District
4 Courtâs decision de novo, drawing all factual inferences in favor of the non-moving party. Miller
5 v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).
6 The Supreme Court has established a four-part inquiry for determining whether
7 regulations of commercial speech are consistent with the First Amendment:
8 [1] whether the expression is protected by the First Amendment. For commercial
9 speech to come within that provision, it at least must concern lawful activity and
10 not be misleading. Next, we ask [2] whether the asserted governmental interest is
11 substantial. If both inquiries yield positive answers, we must determine [3]
12 whether the regulation directly advances the governmental interest asserted, and
13 [4] whether it is not more extensive than is necessary to serve that interest.
14
15 Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commân of N.Y., 447 U.S. 557, 566 (1980). 5
16
17 A. The Disputed Provisions Regulate Commercial Speech Protected by the First Amendment
18 Defendantsâ appeal challenges the District Courtâs threshold conclusion as to the first
19 prong of this inquiryâthat the First Amendment protects advertising that is irrelevant,
20 unverifiable, and non-informational. Although they do not dispute that New Yorkâs thirty-day
21 moratorium provisions regulate protected commercial speech, Defendants argue strenuously to
22 us that New Yorkâs content-based restrictions regulate speech that is not entitled to First
23 Amendment protection at all.
5
The Supreme Court has variously described the Central Hudson test as having three or four prongs, depending on
whether the preliminary inquiry into whether the content to be regulated is protected is counted as a prong. Compare
44 Liquormart, Inc. v. Rhode Island., 517 U.S. 484, 500 n.9 (1996) (describing the test as having four prongs), with
Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995) (describing the test as having three prongs). Defendantsâ
appeal focuses, among other things, on whether certain commercial speech is entitled to First Amendment protection
at all. Because the three-part locution of the Central Hudson test assumes such an inquiry, we adopt the four-part
locution throughout.
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1 The Supreme Court first recognized attorney advertising as within the scope of protected
2 speech in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), in which the Court invalidated a
3 ban on price advertising for what the Court deemed âroutineâ legal services. In so doing, the
4 Court reserved the question of whether similar protection would extend to âadvertising claims as
5 to the quality of services [that] are not susceptible of measurement or verification.â Id. at 383.
6 In the years since Bates, the Supreme Court has offered differing, and not always fully
7 consistent, descriptions as to what constitutes protected commercial speech, particularly with
8 respect to attorney advertising. Speaking generally, the Supreme Court has said that states may
9 impose regulations to ensure that âthe stream of commercial information flow[s] cleanly as well
10 as freely.â Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 772 (1976).
11 But this Court has nonetheless observed that there are âdoctrinal uncertainties left in the wake of
12 Supreme Court decisions from which the modern commercial speech doctrine has evolved. In
13 particular, these decisions have created some uncertainty as to the degree of protection for
14 commercial advertising that lacks precise informational content.â Bad Frog Brewery, Inc. v.
15 N.Y. State Liquor Auth., 134 F.3d 87, 94 (2d Cir. 1998)
16 In the end, we agree with the District Court that, with one exception discussed below, the
17 content-based restrictions in the disputed provisions of § 1200.50(c) regulate commercial speech
18 protected by the First Amendment. In almost every instance, descriptions of the first prong of
19 the Central Hudson test are phrased in the negative, and the only categories that Central Hudson,
20 and its sequellae, clearly excludes from protection are speech that is false, deceptive, or
21 misleading, and speech that concerns unlawful activities. See, e.g., Florida Bar, 515 U.S. at 623-
22 24 (â[T]he government may freely regulate commercial speech that concerns unlawful activity or
23 is misleading. Commercial speech that falls into neither of those categories . . . may be regulated
-11-
1 if the government satisfies [Central Hudsonâs remaining three prongs].â (citation omitted));
2 Ibanez v. Fl. Depât of Bus. & Profâl Regulation, Bd. of Accountancy, 512 U.S. 136, 142 (1994)
3 (â[O]nly false, deceptive, or misleading commercial speech may be banned.â). The Supreme
4 Court has also emphasized that âStates may not place an absolute prohibition on certain types of
5 potentially misleading information . . . if the information also may be presented in a way that is
6 not deceptive.â In re R.M.J., 455 U.S. 191, 203 (1982); see also, e.g., Peel v. Attorney
7 Registration & Disciplinary Commân of Ill., 496 U.S. 91, 100-01 (1990); Shapero v. Ky. Bar
8 Assân, 486 U.S. 466, 479 (1988); Zauderer v. Office of Disciplinary Counsel of the Supreme
9 Court of Ohio, 471 U.S. 626, 644 (1985). We conclude from these precedents that the Central
10 Hudson analysis applies to regulations of commercial speech that is only potentially misleading. 6
11 The speech that Defendantsâ content-based restrictions seeks to regulateâthat which is
12 irrelevant, unverifiable, and non-informationalâis not inherently false, deceptive, or misleading.
13 Defendantsâ own press release described its proposed rules as protecting consumers against
14 âpotentially misleading ads.â This is insufficient to place these restrictions beyond the scope of
15 First Amendment scrutiny. 7
16 There is one exception to this conclusion. Subsection 1200.50(c)(3) prohibits âthe
17 portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated
6
Moreover, in this Courtâs lead opinion on the matter, we have stated generally, in the context of product
advertising, that âminimal information, conveyed in the context of a proposal of a commercial transaction, suffices
to invoke the protections for commercial speech, articulated in Central Hudson.â Bad Frog Brewery, 134 F.3d at
97.
7
Defendants contend that their relevance and verifiability requirements were, in fact, adopted by the Supreme Court
by way of summary dismissal. Comm. on Professional Ethics & Conduct of the Iowa State Bar Assoc. v. Humphrey,
355 N.W.2d 565 (Iowa 1984), vacated and remanded, 472 U.S. 1004 (1985), after remand, 377 N.W.2d 643 (Iowa
1985), appeal dismissed for want of a substantial federal question, 475 U.S. 1114 (1986). We do not find the Iowa
Supreme Courtâs analysis in Humphrey persuasive. And we comment on Humphrey also to draw attention to the
well-established limits on the precedential value of summary dismissals of this kind. The Supreme Court has long
recognized that the precedential value of a summary dismissal is limited to âthe precise issues presented and
necessarily decided byâ the dismissal. Mandel v. Bradley, 432 U.S. 173, 176 (1977). Accordingly, we need not
conclude that New Yorkâs content-restrictions are permissible simply because the Iowa Supreme Court upheld
Iowaâs regulations summarily following an earlier remand.
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1 together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not
2 the case.â N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(3). The District Court
3 invalidated § 1200.50(c)(3) in its entirety. Alexander, 634 F.Supp.2d at 249. Plaintiffs
4 acknowledge, however, that they intended to challenge only the first clause of this subsectionâ
5 prohibiting portrayals of judgesâand they do not oppose Defendantsâ appeal seeking
6 reinstatement of the prohibition on fictitious firms.
7 The provision prohibiting advertisements including fictitious firms is susceptible to more
8 than one interpretation. But we need not decide whether it would be constitutional to prohibit
9 dramatizations in which an advertising law firm portrays itself arguing against a fictitious
10 opposing counsel. At oral argument, the Attorney General, representing the Defendants,
11 suggested a narrower interpretation of this regulation. He asked that we construe this language
12 as applying only to situations in which lawyers from different firms give the misleading
13 impression that they are from the same firm (i.e., âThe Dream Teamâ). (Oral Arg. ~12:38:25)
14 We accept this interpretation. So read, this portion of § 1200.50(c)(3) addresses only attorney
15 advertising techniques that are actually misleading (as to the existence or membership of a firm),
16 and such advertising is not entitled to First Amendment protection. See Florida Bar, 515 U.S. at
17 623-24. Accordingly, and subject to the above-mentioned construction, we reverse the District
18 Courtâs invalidation of that portion of § 1200.50(c)(3) that prohibits advertisements that include
19 fictitious firms.
20 Having concluded that the remainder of the disputed regulations falls within the zone of
21 protected commercial speech, we turn to the rest of the Central Hudson test. The Supreme Court
22 has explained that â[c]ommercial speech that is not false or deceptive and does not concern
23 unlawful activities may be restricted only in the service of a substantial governmental interest,
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1 and only through means that directly advance that interest.â Shapero, 486 U.S. at 472 (quotation
2 marks and alteration omitted). âThe party seeking to uphold a restriction on commercial speech
3 carries the burden of justifying it.â Edenfield v. Fane, 507 U.S. 761, 770 (1993) (quotation
4 marks and alteration omitted). We apply the three remaining prongs of Central Hudson, in turn,
5 to each of the two categories of regulations set forth above.
6
7 B. Central Hudson and the Content-Based Regulations
8 1. Substantial Interest
9 Under the second prong of Central Hudson, the State must identify âa substantial interest
10 in support of its regulation[s].â Florida Bar, 515 U.S. at 624. â[T]he Central Hudson standard
11 does not permit us to supplant the precise interests put forward by the State with other
12 suppositions.â Id. at 624 (quotation marks omitted). Before the District Court and again on
13 appeal, Defendants proffered a state interest in âprohibiting attorney advertisements from
14 containing deceptive or misleading content.â (Appellantsâ Br. 32) The report by the New York
15 State Bar Associationâs Task Force on Lawyer Advertising (hereinafter, the âTask Force Reportâ
16 or âReportâ), which the State considered in formulating its new rules and which constitutes the
17 bulk of the record on appeal, indicates that this is a proper and genuinely asserted interest. The
18 Task Force Report identified protecting the public âby prohibiting advertising and solicitation
19 practices that disseminate false or misleading informationâ as one of its key concerns. (Task
20 Force Report 1-2) This state interest is substantialâindeed, states have a generally unfettered
21 right to prohibit inherently or actually misleading commercial speech. See, e.g., Edenfield, 507
22 U.S. at 769 (â[T]here is no question that [the Stateâs] interest in ensuring the accuracy of
23 commercial information in the marketplace is substantial.â); In re R.M.J., 455 U.S. at 207
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1 (âStates retain the authority to regulate advertising that is inherently misleading or that has
2 proved to be misleading in practice.â). The disputed regulations codified at § 1200.50(c)
3 therefore survive the second prong of the Central Hudson analysis. 8
4 Defendants also assert an interest in âprotecting the legal professionâs image and
5 reputation.â (Appellantsâ Reply 30) In Florida Bar, the Supreme Court recognized a substantial
6 interest âin preventing the erosion of confidence in the [legal] profession.â Florida Bar, 515
7 U.S. at 635. Defendants explain that their interest in preventing misleading attorney advertising
8 is âinextricably linked to its overarching interestâ in maintaining attorney professionalism and
9 respect for the bar. (Appellantsâ Reply 30) This interest also supports the disputed regulations. 9
10 2. Materially Advanced
11 âThe penultimate prong of the Central Hudson test requires that a regulation impinging
12 upon commercial expression âdirectly advance the state interest involved; the regulation may not
13 be sustained if it provides only ineffective or remote support for the governmentâs purpose.ââ
14 Edenfield, 507 U.S. at 770 (quoting Central Hudson, 447 U.S. at 564). The stateâs burden with
15 respect to this prong âis not satisfied by mere speculation or conjecture; rather, a governmental
16 body seeking to sustain a restriction on commercial speech must demonstrate that the harms it
17 recites are real and that its restrictions will in fact alleviate them to a material degree.â Florida
8
Defendants at times assert an interest in âending attorney advertising that is potentially deceptive or misleading.â
(Appellantsâ Br. 36) It is not clear, however, that a state has a substantial interest in prohibiting potentially
misleading advertising, as opposed to inherently or actually misleading advertising. âIf the protections afforded
commercial speech are to retain their force, we cannot allow rote invocation of the words âpotentially misleadingâ to
supplantâ the Stateâs burden. Ibanez, 512 U.S. at 146 (internal quotation marks and citation omitted). Moreover, it
is unclear what harm potentially misleading advertising creates, and the state bears the burden of proving âthat the
harms it recites are real and that its restrictions will in fact alleviate them to a material degree.â Florida Bar, 515
U.S. at 626 (quotation marks omitted). We need not resolve this issue in order to decide this case, and so we leave it
for a future case.
9
In defending the restriction on testimonials by clients with pending matters, Defendants assert a state interest in
preserving the integrity of the attorney-client relationship. (Appellantsâ Br. 39-40) Defendants did not assert this
interest before the District Court, however, and so we do not consider it on appeal. See Virgilio v. City of New York,
407 F.3d 105, 116 (2d Cir. 2005) (âIn general we refrain from passing on issues not raised below.â) (quotation
marks omitted).
-15-
1 Bar, 515 U.S. at 626 (quotation marks omitted). Moreover, â[i]f the protections afforded
2 commercial speech are to retain their force, we cannot allow rote invocation of the words
3 âpotentially misleadingâ to supplantâ this burden. Ibanez, 512 U.S. at 146 (internal quotation
4 marks and citation omitted).
5 Invalidating a regulation of commercial speech for lack of sufficient evidence under this
6 prong of Central Hudson does not foreclose a similar regulation being enacted validly in the
7 future. Rather, such invalidation returns the matter to the applicable legislating body and âforces
8 [that body] to take a âsecond lookâ with the eyes of the people on it.â Guido Calabresi,
9 Foreward: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan
10 Debate Ignores), 105 Harv. L. Rev. 80, 104 (1991); see also Benjamin v. Jacobson, 172 F.3d
11 144, 190 (2d Cir. 1999) (en banc) (Calabresi, J., concurring in the result).
12 In defending the disputed § 1200.50(c) provisions, Defendants rely on three sources of
13 evidence: (1) âhistory, consensus, and simple common sense,â Florida Bar, 515 U.S. at 628
14 (quotation marks omitted), including regulations of attorney advertising in other states; (2)
15 existing and unchallenged rules already in New Yorkâs Code of Professional Responsibility
16 targeting advertising similar to that targeted by the new amendments; and (3) the New York
17 State Bar Associationâs Task Force Report. Defendants have not submitted any statistical or
18 anecdotal evidence of consumer problems with or complaints of the sort they seek to prohibit.
19 Nor have they specifically identified any studies from other jurisdictions on which the state
20 relied in implementing the amendments. See Alexander, 634 F.Supp.2d at 248. Against this
21 background, we test each of the disputed § 1200.50(c) provisions.
22 a. Subsection 1200.50(c)(1): Client Testimonials
-16-
1 This subsection prohibits advertisements that include âan endorsement of, or testimonial
2 about, a lawyer or law firm from a client with respect to a matter that is still pending.â N.Y.
3 Comp. Codes R. & Regs., tit. 22, §1200.50(c)(1). The Task Force Report observed that
4 testimonials can be misleading because they may suggest that past results indicate future
5 performance. (Task Force Report 26-27) The Task Force Report, however, did not recommend
6 outright prohibitions of all testimonials on this basis. Instead, as the District Court observed, the
7 Task Force Report ârecommended a different approach.â Alexander, 634 F.Supp.2d at 249. The
8 Report suggested âstrengthening the rules governing testimonials to prohibit the use of an actor
9 or spokesperson who is not a member or employee of the advertising lawyer or law firm absent
10 disclosure thereof.â (Task Force Report 27) (emphasis added). The Task Force noted,
11 moreover, that âit would be an improper restriction on a clientâs free speech rights to prohibit
12 client testimonials outright.â (Id.) The Task Force Report therefore does not support
13 Defendantsâ assertion that prohibiting testimonials from current clients will materially advance
14 an interest in preventing misleading advertising. Indeed, the Report âcontradicts, rather than
15 strengthens, the Boardâs submissions.â Edenfield, 507 U.S. at 772.
16 Nor does consensus or common sense support the conclusion that client testimonials are
17 inherently misleading. Testimonials may, for example, mislead if they suggest that past results
18 indicate future performanceâbut not all testimonials will do so, especially if they include a
19 disclaimer. The District Court properly concluded that Defendants failed to satisfy this prong of
20 Central Hudson with respect to client testimonials.
21 b. Subsection 1200.50(c)(3): Portrayal of a Judge
-17-
1 This subsection prohibits âthe portrayal of a judge.â N.Y. Comp. Codes R. & Regs., tit.
2 22, § 1200.50(c)(3). 10 The Task Force Report observes that âa communication that states or
3 implies that the lawyer has the ability to influence improperly a courtâ is âlikely to be false,
4 deceptive, or misleading.â (Task Force Report, App. I, 11) The District Court found this
5 comment to be persuasive evidence that a ban on portrayals of judges would materially advance
6 the Stateâs interest in preventing misleading advertising. We disagree. Although it seems
7 plainly true that implying an ability to influence a court is likely to be misleading, Defendants
8 have failed to draw the requisite connection between that common sense observation and
9 portrayals of judges in advertisements generally. The advertisement in which Alexander &
10 Catalano use the portrayal of a judge, for instance, depicts a judge in the courtroom and states
11 that the judge is there âto make sure [the trial] is fair.â This sort of advertisement does not imply
12 an ability to influence a court improperly. It is not misleading; an advertisement of this sort may,
13 instead, be informative. We believe the Task Force Report fails to support Defendantsâ
14 prohibition on portrayals of judges 11 and conclude that Defendants have not met their burden
15 with respect to the wholesale prohibition of portrayals of judges. This prohibition consequently
16 must fall.
17 c. Subsection 1200.50(c)(5): Irrelevant Techniques
18 This subsection prohibits advertisements that ârely on techniques to obtain attention that
19 demonstrate a clear and intentional lack of relevance to the selection of counsel, including the
20 portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence.â N.Y.
21 Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(5). Defendants note that the New York Code of
10
Subsection 1200.50(c)(3) also includes the prohibition on fictitious law firms discussed in section A above.
11
New Yorkâs existing rule prohibiting attorneys from stating or implying that they are able âto influence
improperly or upon irrelevant grounds any tribunal, legislative body, or public official,â N.Y. Comp. Codes R. &
Regs., tit. 22, § 1200.58(e)(1), does not support the new rule. On the contrary, this rule mirrors the Task Force
Reportâs remarks, and does not suggest that any and all portrayals of judges imply the capacity to exercise improper
influence over a court or other government body.
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1 Professional Responsibility has long declared that the purpose of attorney advertising is to
2 âeducate the public to an awareness of legal needs and to provide information relevant to the
3 selection of the most appropriate counsel.â (Appellantsâ Br. 33-34) (quotation marks omitted)
4 Defendants contend that their rule excluding attention-getting techniques unrelated to attorney
5 competence reflects this principle and so materially advances âNew Yorkâs interest in factual,
6 relevant attorney advertisements.â (Appellantsâ Br. 35)
7 A rule barring irrelevant advertising components certainly advances an interest in
8 keeping attorney advertising factual and relevant. But this interest is quite different from an
9 interest in preventing misleading advertising. Like Defendantsâ claim that the First Amendment
10 does not protect irrelevant and unverifiable components in advertising, Defendants here appear
11 to conflate irrelevant components of advertising with misleading advertising. These are not one
12 and the same. Questions of taste or effectiveness in advertising are generally matters of
13 subjective judgment. Moreover, as the Task Force Report acknowledged, âLimiting the
14 information that may be advertised . . . assumes that the bar can accurately forecast the kind of
15 information that the public would regard as relevant.â (Task Force Report, App. I, 8)
16 Defendants have introduced no evidence that the sorts of irrelevant advertising
17 components proscribed by subsection 1200.50(c)(5) are, in fact, misleading and so subject to
18 proscription. Significantly, the Task Force Report expressly recognized that âcommunications
19 involving puffery and claims that cannot be measured or verifiedâ were not specifically
20 addressed in its proposed rules, although such communications would already be prohibited âto
21 the extent that they are false, deceptive or misleading.â (Task Force Report, App. I, 9) Insofar
22 as the Task Force Report touched on style and advertising gimmicks designed to draw attention,
23 its recommendations were hortatory only. (See Task Force Report 70) (quoting the Monroe
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1 County Bar Association Project exhortingâbut not requiringâlawyers and firms to include only
2 âfactually accurate and objectively verifiableâ information in their advertisements, and to
3 minimize devices such as puffery in favor of information ârelevant to the thoughtful selection of
4 counselâ).
5 Moreover, the sorts of gimmicks that this rule appears designed to reachâsuch as
6 Alexander & Catalanoâs wisps of smoke, blue electrical currents, and special effectsâdo not
7 actually seem likely to mislead. It is true that Alexander and his partner are not giants towering
8 above local buildings; they cannot run to a clientâs house so quickly that they appear as blurs;
9 and they do not actually provide legal assistance to space aliens. But given the prevalence of
10 these and other kinds of special effects in advertising and entertainment, we cannot seriously
11 believeâpurely as a matter of âcommon senseââthat ordinary individuals are likely to be
12 misled into thinking that these advertisements depict true characteristics. Indeed, some of these
13 gimmicks, while seemingly irrelevant, may actually serve âimportant communicative functions:
14 [they] attract[] the attention of the audience to the advertiserâs message, and [they] may also
15 serve to impart information directly.â Zauderer, 471 U.S. at 647. Plaintiffs assert that they use
16 attention-getting techniques to âcommunicate ideas in an easy-to-understand form, to attract
17 viewer interest, to give emphasis, and to make information more memorable.â (Appelleesâ Br.
18 36) Defendants provide no evidence to the contrary; nor do they provide evidence that
19 consumers have, in fact, been misled by these or similar advertisements. Absent such, or similar,
20 evidence, Defendants cannot meet their burden for sustaining subsection 1200.50(c)(5)âs
21 prohibition under Central Hudson.
22 d. Section 1200.50(c)(7): Nicknames, Mottos, and Trade Names
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1 This subsection bars advertisements âutiliz[ing] a nickname, moniker, motto or trade
2 name that implies an ability to obtain results in a matter.â N.Y. Comp. Codes R. & Regs., tit. 22,
3 § 1200.50(c)(7). We conclude, once again, that the evidence on which Defendants rely fails to
4 support this regulation.
5 There is a compelling, commonsense argument that, given the uncertainties of litigation,
6 names that imply an ability to obtain results are usually misleading. The Task Force Report
7 made precisely this observation, stating in its recommendations that âthe use of dollar signs, the
8 terms âmost cashâ or âmaximum dollars,â or like terms that suggest the outcome of the legal
9 matterâ is âlikely to be false, deceptive or misleading.â (Task Force Report, App. I, 11-12) Like
10 its recommendations on irrelevant advertising techniques, however, the Task Force Report did
11 not recommend outright prohibition of all such trade names or mottosâit simply acknowledged
12 that such names are often misleading. Defendantsâ rule, by contrast, goes further and prohibits
13 such descriptorsâincluding, according to the Attorney General, Alexander & Catalanoâs own
14 âHeavy Hittersâ mottoâeven when they are not actually misleading. The Task Force Report
15 therefore fails to support Defendantsâ considerably broader rule.
16 Nor are we persuaded as to this ruleâs constitutionality by reference to Friedman v.
17 Rogers, 440 U.S. 1 (1979), in which the Supreme Court upheld a prohibition on optometrist trade
18 names. There is doubt as to Friedmanâs continued vitality. Friedman preceded Central Hudson
19 by nine years and did not employ Central Hudsonâs multi-factor First Amendment analysis. As
20 this Court previously observed in Bad Frog Brewery, subsequent Supreme Court precedent has
21 undermined Friedman and moved in the direction of greater First Amendment protection for âa
22 logo or a slogan that conveys no information, other than identifying the source of the product,
23 but that serves, to some degree, to âpropose a commercial transaction.ââ 134 F.3d at 96 (quoting
-21-
1 Posadas de Puerto Rico Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 340 (1986)).
2 Accordingly, we decline to rely solely on Friedman to uphold § 1200.50(c)(7) given the
3 subsequent precedential developments establishing more specific and demanding burdens of
4 evidence on the state.
5 Moreover, in Friedman itself, the state marshaled substantially stronger and more
6 specific evidence supporting its prohibition on trade names than was done in this case. See, e.g.,
7 Friedman, 440 U.S. at 13-15. There is a dearth of evidence in the present record supporting the
8 need for § 1200.50(c)(7)âs prohibition on names that imply an ability to get results when the
9 names are akin to, and no more than, the kind of puffery that is commonly seen, and indeed
10 expected, in commercial advertisements generally. Defendants have once again failed to provide
11 evidence that consumers have, in fact, been misled by the sorts of names and promotional
12 devices targeted by § 1200.50(c)(7), and so have failed to meet their burden for sustaining this
13 prohibition under Central Hudson.
14 3. Narrowly Tailored
15 The final prong of Central Hudson asks whether the âfitâ between the goals identified
16 (the stateâs interests) and the means chosen to advance these goals is reasonable; the fit need not
17 be perfect. Florida Bar, 515 U.S. at 632. As this Court has explained, ââlaws restricting
18 commercial speech . . . need only be tailored in a reasonable manner to serve a substantial state
19 interest in order to survive First Amendment scrutiny.ââ N.Y. State Assân of Realtors v. Shaffer,
20 27 F.3d 834, 842 (2d Cir. 1994) (quoting Edenfield, 507 U.S. at 767). Nonetheless, ârestrictions
21 upon [potentially deceptive speech] may be no broader than reasonably necessary to prevent the
22 deception.â In re R.M.J., 455 U.S. at 203. â[T]he existence of numerous and obvious less-
23 burdensome alternatives to the restriction on commercial speech is certainly a relevant
-22-
1 consideration in determining whether the âfitâ between ends and means is reasonable.â Florida
2 Bar, 515 U.S. at 632 (quotation marks and alteration omitted). More precisely, the Supreme
3 Court has emphasized that âStates may not place an absolute prohibition on certain types of
4 potentially misleading information . . . if the information also may be presented in a way that is
5 not deceptive.â In re R.M.J., 455 U.S. at 203. And the Supreme Court has also affirmed that a
6 state may not impose a prophylactic ban on potentially misleading speech merely to spare itself
7 the trouble of âdistinguishing the truthful from the false, the helpful from the misleading, and the
8 harmless from the harmful.â Zauderer, 471 U.S. at 646.
9 On this basis, even if we were to find that all of the disputed Section 1200.50(c)
10 restrictions 12 survived scrutiny under Central Hudsonâs third prong, each would fail the final
11 inquiry because each wholly prohibits a category of advertising speech that is potentially
12 misleading, but is not inherently or actually misleading in all cases. Contrary to Defendantsâ
13 assertions, the fact that New Yorkâs rules do also permit substantial information in attorney
14 advertising does not render the disputed provisions any less categorical. Significantly, Zauderer
15 deemed a rule barring illustrations a âblanket ban.â Zauderer, 471 U.S. at 648. And New
16 Yorkâs rules prohibiting, inter alia, all testimonials by current clients, all portrayals of judges,
17 and all depictions of lawyers exhibiting characteristics unrelated to legal competence are
18 similarly categorical. Because these advertising techniques are no more than potentially
19 misleading, the categorical nature of New Yorkâs prohibitions would alone be enough to render
20 the prohibitions invalid.
21 Moreover, ânowhere does the State cite any evidence or authority of any kind for its
22 contention that the potential abuses associated with the [disputed provisions] cannot be combated
12
Excepting, of course, the prohibition on fictitious firms, which, as explained in section A above, addresses
inherently misleading advertising that need not be scrutinized under the remaining Central Hudson prongs.
-23-
1 by any means short of a blanket ban.â Zauderer, 471 U.S. at 648; see also Peel, 496 U.S. at 109
2 (noting that the mere potential for misleading âdoes not satisfy the Stateâs heavy burden of
3 justifying a categorical prohibitionâ). As the District Court observed, the State could have, for
4 example, required disclaimers similar to the one already required for fictional scenes. Alexander,
5 634 F.Supp.2d at 250; see N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(4) (fictional
6 scenes). Nothing in the record suggests that such disclaimers would have been ineffective.
7 The materials in the record show, instead, that disclaimers and other regulations short of
8 content-based bans were in fact suggested. The Task Force âagreed at the outset to deal in
9 practical solutions (i.e., generally strengthening existing disclaimers and requiring further
10 disclosures) without adding content-based restrictions.â (Task Force Report 2) Nearly all of the
11 Reportâs recommendations followed this general rule. And in comments responding to New
12 Yorkâs draft rules, the Federal Trade Commission, âwhich has a long history of reviewing claims
13 of deceptive advertising,â Peel, 496 U.S. at 105, similarly stated its belief that New York could
14 adequately protect consumers âusing less restrictive means such as requiring clear and prominent
15 disclosure of certain information.â (Letter from the FTCâs Office of Policy Planning, Bureau of
16 Consumer Protection, and Bureau of Economics to Michael Colodner, Office of Court
17 Administration (Sept. 14, 2006))
18 Defendants have failed to carry their burden with respect to Central Hudsonâs final
19 prong. We therefore conclude, like the District Court, that the disputed portions of subsections
20 1200.50(c)(1), (3), (5), and (7) are unconstitutional. In so doing, we return this matter to the
21 Appellate Division, where that body may âtake a âsecond lookâ with the eyes of the people on it.
22 Calabresi, Foreward, supra, at 104.
23
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1 C. Central Hudson and the Moratorium Provisions
2 Plaintiffsâ cross-appeal challenges the District Courtâs decision upholding New Yorkâs
3 time-limited moratorium on solicitation of accident victims or their families. âIn cases where a
4 legal filing is required within thirty days, the moratorium is limited to a fifteen-day cooling off
5 period.â Alexander, 634 F.Supp.2d at 253. New Yorkâs moratorium provisions apply to all
6 media through which an attorney might initiate communication âdirected to, or targeted at, a
7 specific recipient or group of recipients.â N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.52(b).
8 Consistent with the regulations as written and with counselâs concessions at oral
9 argument, we construe the moratorium provision as inapplicable to (a) broad, generalized
10 mailings (Oral Arg. ~12:06:18); (b) general advertisements conveying an attorneyâs experience
11 in handling personal-injury suits, even when these advertisements appear near news stories in a
12 newspaper that the attorney knows will be filled with coverage of a particular accident (Oral Arg.
13 ~12:02:38-12:03:00) 13 ; or (c) advertisements informing readers of an attorneyâs past experience
14 with a particular product where that product has caused repeated personal-injury problems (as
15 with the Dalkon Shield advertisement at issue in Zauderer). (Oral Arg. ~12:04:11)
16 We turn now to the remaining Central Hudson inquiries relevant to the moratorium
17 provision.
18 1. State Interest
19 In Florida Bar, the Supreme Court recognized as a substantial state interest âprotecting
20 the privacy and tranquility of personal injury victims and their loved ones against intrusive,
21 unsolicited contact by lawyers.â Florida Bar, 515 U.S. at 624. That case considered a thirty-day
13 It is unclear whether the moratorium provisions apply to âmeta tagging,â a process by which one can insert non-
visible HTML code into a website or web advertisement. By use of a meta tag, for example, a lawyer can design a
general advertisement that appears when one searches for information regarding a specific incident. The parties
have not briefed whether the moratorium provisions prohibit meta tagging, or if they do prohibit meta tagging,
whether the prohibition is constitutional. Accordingly, we express no opinion on either question.
-25-
1 moratorium on direct-mail solicitation of accident victims (or their families). This case similarly
2 involves a moratorium on contacting accident victims (and their families). The Task Force
3 Report, which Defendants considered, recommended a limited moratorium because âthe cooling
4 off requirement would be beneficial in removing a source of annoyance and offense to those
5 already troubled by an accident or similar occurrence.â (Task Force Report 62-63) Florida Bar
6 makes clear that Defendantsâ stated interest is substantial, and the Task Force Report indicates
7 that that interest is genuinely asserted. The moratorium provisions thus meet the requirements of
8 Central Hudsonâs substantial interest prong.
9 2. Materially Advanced
10 Florida Bar upheld Floridaâs moratorium rule, which is similar to the New York
11 provisions before us. Several other states have since adopted analogous regulations prohibiting
12 targeted solicitation of accident victims for specific periods of time. 14 The Task Force Report,
13 based in part on the practices of these states, recommended a fifteen-day âcooling-off periodâ
14 during which direct-mail solicitation of accident victims would be prohibited. (Task Force
15 Report, App. I, 4) New Yorkâs moratorium provisions seek to address the same harms that the
16 Florida Bar Court recognized in upholding a thirty-day ban on direct-mail solicitations. And the
17 New York provisions seek to address those harms through similar meansâa time-limited
14
See, e.g., Ariz. Rules of Profâl Conduct R. 7.3(b)(3) (prohibiting âwritten, recorded or electronic communication
or by in-person, telephone or real-time electronicâ solicitation where âthe solicitation relates to a personal injury or
wrongful death and is made within thirty (30) days of such occurrenceâ); Conn. Rules of Profâl Conduct R. 7.3(b)(5)
(imposing a forty-day moratorium on âwritten or electronic communication concern[ing] an action for personal
injury or wrongful deathâ); Ga. Rules of Profâl Conduct R. 7.3(a)(3) (imposing a thirty-day moratorium on âwritten
communication concern[ing] an action for personal injury or wrongful deathâ); La. Rules of Profâl Conduct R.
7.3(b)(iii)(C) (imposing a thirty-day moratorium on communication âconcern[ing] an action for personal injury or
wrongful deathâ); Mo. Rules of Profâl Conduct 7.3(c)(4) (prohibiting written solicitation, including by e-mail,
âconcern[ing] an action for personal injury or wrongful death . . . if the accident or disaster occurred less than 30
days prior to the solicitationâ); Tenn. Rules of Profâl Conduct R. 7.3(b)(3) (prohibiting solicitation of âprofessional
employment from a potential client by written, recorded, or electronic communication or by in-person, telephone, or
real-time electronic contactâ if âthe communication concerns an action for personal injury, workerâs compensation,
wrongful death, or otherwise relates to an accident or disaster involving the person to whom the communication is
addressed . . . unless the accident or disaster occurred more than thirty (30) days prior to the mailing or transmission
of the communicationâ).
-26-
1 moratorium on targeted solicitation of potential clients. Florida Bar makes clear that such
2 means materially advance the stateâs interest. We conclude, therefore, that Defendants have met
3 their burden under this prong of Central Hudson. See Moore v. Morales, 63 F.3d 358, 361-62
4 (5th Cir. 1995) (relying largely on Florida Bar in upholding a rule prohibiting attorneys,
5 physicians, and other professionals from soliciting accident victims within thirty days following
6 the accident).
7 3. Narrowly Tailored
8 Were New Yorkâs moratorium provisions limited to direct-mail solicitation, there would
9 be little question as to their constitutionality. See Falanga v. State Bar of Georgia, 150 F.3d
10 1333, 1340-41 (11th Cir. 1998). But New Yorkâs moratorium is not so limited. As the District
11 Court recognized, âThe moratorium provisions in this case extend by their plain language to
12 television, radio, newspaper, and website solicitations that are directed to or targeted at a specific
13 recipient or group of recipients.â Alexander, 634 F.Supp.2d at 253.
14 The Supreme Court has in some circumstances favored a technology-specific approach to
15 the First Amendment. See United States v. Playboy Entmât Group, Inc., 529 U.S. 803, 813
16 (2000) (âCable television, like broadcast media, presents unique problems, which inform our
17 assessment of the interests at stake, and which may justify restrictions that would be
18 unacceptable in other contexts.â); Reno v. ACLU, 521 U.S. 844, 868 (1997) (â[E]ach medium of
19 expression may present its own problems.â (quotation marks and alteration omitted)); FCC v.
20 League of Women Voters of Ca., 468 U.S. 367, 377 (1984) (â[W]e have recognized that
21 âdifferences in the characteristics of new media justify differences in the First Amendment
22 standards applied to them.ââ (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969))). 15
15
See also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74 (1983) (â[T]he special interest of the federal
government in regulation of the broadcast media does not readily translate into a justification for regulation of other
-27-
1 Different media may present unique attributes that merit a tailored First Amendment analysis.
2 But see Jim Chen, Conduit-Based Regulation of Speech, 54 Duke L.J. 1359, 1360 (2005) (â[A]
3 constitutional jurisprudence that minimizes reliance on conduit-based distinctions best protects
4 free speech.â).
5 But the differences among media may or may not be relevant to the First Amendment
6 analysis depending on the challenged restrictions. Compare Sable Commcâns of Ca., Inc. v.
7 FCC, 492 U.S. 115, 128 (1989) (âUnlike an unexpected outburst on a radio broadcast, the
8 message received by one who places a call to a dial-a-porn service is not so invasive or
9 surprising that it prevents an unwilling listener from avoiding exposure to it.â), with Reno, 521
10 U.S. at 875â76 (likening regulations seeking to protect minors from harmful material on the
11 Internet to regulations on obscene commercial telephone recordings), and Sable Commcâns, 492
12 U.S. at 125 (likening obscene commercial telephone recordings to obscene commercial
13 mailings); cf. Shapero v. Ky. Bar Assân, 486 U.S. 466, 473 (1988) (âOur lawyer advertising cases
14 have never distinguished among various modes of written advertising to the general public.â).
15 In the context before us, we eschew a technology-specific approach to the First
16 Amendment and conclude that New Yorkâs moratorium provisionsâas we construe themâ
17 survive constitutional scrutiny notwithstanding their applicability across the technological
18 spectrum. We focus first on the potential differences among media as to the degree of
19 affirmative action needed to be taken by the targeted recipient to receive the material Plaintiffs
20 seek to send. For many media forms, it is about the same. Thus, to us, the affirmative act of
means of communication.â); FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (âWe have long recognized that
each medium of expression presents special First Amendment problems.â); S.E. Promotions, Ltd. v. Conrad, 420
U.S. 546, 557 (1975) (âEach medium of expression . . . must be assessed for First Amendment purposes by
standards suited to it . . . .â).
-28-
1 walking to oneâs mailbox and tearing open a letter seems no greater than walking to oneâs front
2 step and picking up the paper or turning on a knob on a television or radio.
3 It is true that the Internet may appear to require more affirmative acts on the part of the
4 user in order to recover content (and is therefore perhaps entitled to greater First Amendment
5 protection insofar as users are soliciting information, rather than being solicited). But regardless
6 of whether this characterization was once accurate, it no longer is so. E-mail has replaced letters;
7 newspapers are often read online; radio streams online; television programming is broadcast on
8 the Web; and the Internet can be connected to television. See Christopher S. Yoo, The Rise and
9 Demise of the Technology-Specific Approach to the First Amendment, 91 Geo. L.J. 245, 248
10 (2003) (â[T]he impending shift of all networks to packet switched technologies promises to
11 cause all of the distinctions based on the means of conveyance and the type of speech conveyed
12 to collapse entirely.â). Furthermore, Internet searches do not bring a user immediately to the
13 desired result without distractions. Advertisements may appear with the userâs search results;
14 pop-up ads appear on web pages; and Gmail (Googleâs e-mail service) creates targeted
15 advertising based on the keywords used in oneâs e-mail. In such a context, an accident victim
16 who describes her experience in an e-mail might very well find an attorney advertisement
17 targeting victims of the specific accident on her computer screen. 16
18 States are increasingly responding to these expanded and expanding roles of the Internet.
19 Several already apply existing attorney professional responsibility rules to electronic and Internet
20 advertisements and solicitations. See Amy Haywood & Melissa Jones, Navigating a Sea of
21 Uncertainty: How Existing Ethical Guidelines Pertain to the Marketing of Legal Services over
16
At present, Gmailâs algorithm for placing targeted advertisements next to e-mail messages omits such ads where
an e-mail message mentions a catastrophic event or tragedy. See More on Gmail and Privacy, Jan. 2007,
http://mail.google.com/mail/help/about_privacy.html. It is by no means certain, however, (a) that Google will
continue such a policy, (b) that the algorithm runs without flaws, or (c) that other e-mail providers will exercise
similar good taste.
-29-
1 the Internet, 14 Geo. J. Legal Ethics, 1099, 1113 (2001) (â[I]t can be assumed that Internet use in
2 the context of legal marketing will generally invoke all ethics rules relating to advertising and
3 solicitation.â). 17 Texas and Florida have also added language to their disciplinary rules
4 specifically to address attorney solicitation via the Internet. 18 The New York Task Force Report
5 reached the same conclusion. The Report repeatedly stated that âon-line advertisements and
6 websites are not materially different than typicalâ printed advertisements, and that the rules
7 should be enforced equally across media. (Task Force Report 54-55) In so doing, the Report
8 âdemonstrate[d] that the harms it recites are real and its restriction will in fact alleviate them to a
9 degree.â Florida Bar, 515 U.S. at 626 (quotation marks omitted).
10 Accordingly, we conclude that even acknowledging that differences among media may
11 be significant in some First Amendment analyses, they are not so in this case. Three aspects of
12 the Supreme Courtâs analysis in Florida Bar are of particular relevance to our determination that
13 the harms identified in that case, and put forth by Defendants in this case, are just as compelling
14 with respect to targeted attorney advertisements on television, radio, newspapers, and the
15 Internet as they are in justifying a ban on targeted mailings of attorney advertisements.
16 a. Porcelain Hearts
17 The Supreme Court has recognized the particular sensitivity of people to targeted
18 (plaintiffâs) attorney advertisements during periods of trauma. To the extent that the attorney
19 advertisements, regardless of the media through which they are communicated, are directed
20 toward the same sensitive people, there is no reason to distinguish among the mode of
17
See, e.g., S.C. Ethics Op. 99-04 (1999) (advertising); Mass. Ethics Op. 98-2 (1998) (advertising and solicitation);
Iowa Ethics Op. 96-1 (1996) (advertising); Pa. Ethics Op. 96-17 (1996) (advertising).
18
See Amendments to Rules Regulating the Florida BarâAdvertising Rules, 762 So.2d 392 (Fla. 1999); Tex.
Disciplinary Rules of Profâl Conduct, Interpretive Cmt. 17 (1996, rev. May 2003).
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1 communication. Depending on the individual recipient, the printed word may be a likely to
2 offend as images on a screen or in newspapers.
3 In Florida Bar, the Court recognized the stateâs âsubstantial interest . . . in protecting
4 injured Floridians from invasive conduct by lawyers.â 515 U.S. at 635. As the dissent in
5 Florida Bar pointed out, the primary distinction between the targeted letters at issue in Florida
6 Bar and the untargeted letters at issue in Shapero v. Kentucky Bar Association, 486 U.S. 466
7 (1988), was that âvictims or their families will be offended by receiving a [targeted] solicitation
8 during their grief and trauma.â Florida Bar, 515 U.S. at 638. The dissent argued that the
9 majority should not âallow restrictions on speech to be justified on the ground that the expression
10 might offend the listener.â Id.
11 But the majority of the Supreme Court in Florida Bar held otherwise. It focused on a
12 subset of the public in analyzing the First Amendment: essentially, a First Amendment analogue
13 to tort lawâs thin-skull plaintiffs, those who have a âporcelain heart.â Some accident victims and
14 their families might welcome targeted solicitations that inform them of their legal rights
15 immediately after the accident (particularly when insurance companies may already be knocking
16 on their doors). Other accident victims and their families might be perturbedâbut not
17 outragedâby the targeted solicitations. The Supreme Court, however, tailored First Amendment
18 law, in the context of attorney solicitations, to the most sensitive members of the public. It is
19 with these porcelain hearts in mind that we must evaluate New Yorkâs moratorium.
20 b. Wemmickâs Castle 19
21 In addition to a heightened concern for public sensitivity to potentially offensive attorney
22 communications, the Court in Florida Bar upheld the moratorium in part because of its belief
19
In Charles Dickensâ âGreat Expectations,â the character of Mr. Wemmick has a home that is literally his castle,
complete with a drawbridge and moat that are used to separate his lives inside and outside the home.
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1 that people should be given more of an option to avoid offensive speech in the privacy of their
2 homes. See Florida Bar, 515 U.S. at 625 (â[W]e have consistently recognized that the Stateâs
3 interest in protecting the well-being, tranquility, and privacy of the home is certainly of the
4 highest order in a free and civilized society.â (quotation marks and alterations omitted)).
5 In this respect, the Court was adhering to a long-held position:
6 One important aspect of residential privacy is protection of the unwilling listener.
7 Although in many locations, we expect individuals simply to avoid speech they
8 do not want to hear, the home is different. âThat we are often âcaptivesâ outside
9 the sanctuary of the home and subject to objectionable speech . . . does not mean
10 we must be captives everywhere.â Rowan v. U.S. Post Office Depât, 397 U.S.
11 728, 738, 90 S. Ct. 1484, 1491, 25 L.Ed.2d 736 (1970). Instead, a special benefit
12 of the privacy all citizens enjoy within their own walls, which the State may
13 legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held
14 that individuals are not required to welcome unwanted speech into their own
15 homes and that the government may protect this freedom.
16
17 Frisby v. Schultz, 487 U.S. 474, 484â85 (1988) (some internal citations omitted); Rowan v. U.S.
18 Post Office Depât, 397 U.S. 728, 737 (âThe ancient concept that âa manâs home is his castleâ into
19 which ânot even the king may enterâ has lost none of its vitality, and none of the recognized
20 exceptions includes any right to communicate offensively with another.â). In Rowan, the
21 Supreme Court âcategorically reject[ed] the argument that a vendor has a right under the
22 Constitution or otherwise to send unwanted material into the home of another,â and held that
23 â[t]he asserted right of a mailer . . . stops at the outer boundary of every personâs domain.â Id. at
24 738.
25 Yet, a letter in a mailbox is no more intrusive than the newspaper in the mailbox, the e-
26 mail in oneâs inbox, the television in the living room, the radio in the kitchen, or the Internet in
27 the study. Arguably, mail is directly targeted at a residence, whereas television, radio, and the
28 Internet may be viewed outside the home. But the Court has seemingly not focused on this
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1 distinction, and, instead, has held that the home should be protected from offensive language that
2 disturbs domestic tranquility through the airwaves:
3 Patently offensive, indecent material presented over the airwaves confronts the
4 citizen, not only in public, but also in the privacy of the home, where the
5 individualâs right to be left alone plainly outweighs the First Amendment rights of
6 an intruder. Because the broadcast audience is constantly tuning in and out, prior
7 warnings cannot completely protect the listener or viewer from unexpected
8 program content. To say that one may avoid further offense by turning off the
9 radio when he hears indecent language is like saying that the remedy for an
10 assault is to run away after the first blow. One may hang up on an indecent phone
11 call, but that option does not give the caller a constitutional immunity or avoid a
12 harm that has already taken place.
13
14 FCC v. Pacifica Found., 438 U.S. 726, 748â49 (1978) (internal citation omitted) (upholding the
15 FCCâs regulation of radio broadcast); cf. Rowan, 397 U.S. at 736â37 (â[A] mailerâs right to
16 communicate must stop at the mailbox of an unreceptive addressee.â). Once again, we find no
17 reason to distinguish among these media for our First Amendment analysis.
18 c. Lawyersâ Reputations
19 Finally, Florida Bar recognized the stateâs âsubstantial interest . . . in preventing the
20 erosion of confidence in the [legal] profession that . . . repeated invasions [of privacy by lawyers]
21 have engendered.â 515 U.S. at 635. The Florida Bar court distinguished between two kinds of
22 direct-mail advertisements: (1) those that cause offense to the recipient and whose harm can âbe
23 eliminated by a brief journey to the trash can,â id. at 631; see also Bolger, 463 U.S. 60 (rejecting
24 federal ban on direct-mail advertisements for contraceptives), and (2) those whose harmful
25 effects extend beyond the recipient by, for example, tarnishing the reputation of a professional
26 group. See Florida Bar, 515 U.S. at 631 (âThe Bar is concerned not with citizensâ âoffenseâ in
27 the abstract, but with the demonstrable detrimental effects that such âoffenseâ has on the
28 profession it regulates. Moreover, the harm posited by the Bar is as much a function of simple
29 receipt of targeted solicitations within days of accidents as it is a function of the lettersâ contents.
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1 Throwing the letter away shortly after opening it may minimize the latter intrusion, but it does
2 little to combat the former.â (internal citations omitted)). A solicitation that offends is not likely
3 to be any less detrimental to the reputation of lawyers when spoken aloud, displayed on a
4 computer screen, or conveyed by television.
5 Accordingly, we conclude that ads targeting certain accident victims that are sent by
6 television, radio, newspapers, or the Internet are more similar to direct-mail solicitations, which
7 can properly be prohibited within a limited time frame, than to âan untargeted letter mailed to
8 society at large,â which âinvolves no willful or knowing affront to or invasion of the tranquility
9 of bereaved or injured individuals and simply does not cause the same kind of reputational harm
10 to the professionâ as direct mail solicitations. Florida Bar, 515 U.S. at 630.
11 Moreover, we do not find constitutional fault with the 30-day time period during which
12 attorneys may not solicit potential clients in a targeted fashion. As with Florida Barâs âshort
13 temporal ban,â New Yorkâs moratorium permits attorneys to advertise to the general public their
14 expertise with personal injury or wrongful death claims. It thereby fosters reaching the accident
15 victims, so long as these victims are not specifically targeted. It further allows accident victims
16 to initiate contact with attorneys even during the thirty days following an accident. See Florida
17 Bar, 515 U.S. at 633. In fact, as amici New York State Bar Association point out, New Yorkâs
18 moratorium is more narrowly tailored than that of Florida Bar insofar as it incorporates the Task
19 Force Reportâs fifteen-day black-out period, which shortens the moratorium period to fifteen
20 days where an attorney or law firm must make a filing within thirty days of an incident as a legal
21 prerequisite to a particular claim. N.Y. Comp. Codes R. & Regs., tit. 22, §§ 1200.52(e),
22 1200.36(a), 1200.36(b). No doubt the statute could have been more precisely drawn, but it need
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1 not be âperfectâ or âthe least restrictive meansâ to pass constitutional muster. Bd. of Trustees of
2 State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989).
3 New Yorkâs moratorium provisions prohibit targeted communications by lawyers to
4 victims, their families, or their representatives as to a specific personal injury or wrongful death
5 event, where such communications occur within thirty days of the incident in question. Where a
6 legal filing is required within thirty days, the moratorium is limited to fifteen days. These
7 provisions, although they reach a broader range of advertisements than those proscribed by the
8 moratorium in Florida Bar, do not impose barriers inconsistent with the First Amendment. We
9 conclude that the moratorium provisions, as construed, are sufficiently narrowly tailored to
10 survive constitutional scrutiny.
11 CONCLUSION
12 The thorough and well-reasoned opinion of the District Court is AFFIRMED, except as
13 to N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(3)âs ban on âthe portrayal of a fictitious
14 law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or
15 otherwise imply[ing] that lawyers are associated in a law firm if that is not the case.â With
16 respect to this portion of § 1200.50(c)(3) only, the judgment of the District Court is REVERSED.
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